Monday, March 9, 2015

Law firm failures have become spectacles. Non-lawyers who witness what was once a rare event might take pleasure, because they have never held lawyers in high esteem to begin with. Lawyers at rivals down the street may look on anxiously, concerned about what they might not have read carefully in their own partnership agreement.

We all measure the world by our own experiences. A generation -- twenty years -- passed between the time I stepped foot in San Francisco to interview for a summer associate job at a major law firm, and when I returned to the city by the bay to head a law school.

Between 1990 and 2010, the economic changes that have been astonishing to members of the bar likely have not been all that surprising to everyone else. After all, that time period encompasses the dot-com boom and bust, a phenomenon an order of magnitude (at least) greater than any disruption to established professional service firms.

Chancellor & Dean Frank H. Wu

Nonetheless, I had not expected to find what I did upon my return. I would estimate that fewer than one third of the brand name, top drawer, old shoe partnerships, however defined, were still practicing under the same name and with the same structure. Most of them had vanished, some in major stories reported by the mainstream media; others had reconfigured with varying voluntariness, losing a few colleagues as they did what they had to do.

Meanwhile, a market that had only one major "out of town" firm came to have branch offices of every national outfit. In an entrepreneurial culture where fortunes can be made on an idea that appears to generate negative return on investment, even lawyers have had to adapt. A number of firms subject to dire predictions turned out to be fine.

I have a hypothesis about these dynamics. Law firms fail for many reasons. Among them is not one that might be expected. Very few, if any, of the law firms that have "failed" has foundered because the people employed there were lousy lawyers.

The causes of these debacles are varied: too much debt or space, not enough revenues or collegiality (the latter merely referring to how to divide the former), geographic expansion for it's own sake, promises to lateral recruits that cannot be sustained according to any rational calculations, and so on.

What is more remarkable, however, than what produces the joyless outcomes is what does not. Bad lawyering is not usually the cause. The lawyers at law firms no longer with us generally were capable. As lawyers, they may well have been superlative. Some were "lawyer's lawyers," those admired by their peers.

The busted law firms boasted people with excellent pedigrees. They represented clients who were the envy of their peers. They fought the bet-the-company cases and handled the sell-the-company deals.

Nobody ever says, "Oh, well, they were bad lawyers at XYZ law firm."

They say the opposite, "How could that have happened? They were the best."

And that makes my argument. Smart people overestimate the importance of being a smart person. To be the best lawyer, or the best collection of lawyers, is not enough; it doesn't even guarantee you stay in the game.

It is necessary to be great businesspeople, too. Or to affiliate with great businesspeople, which means recognizing that the technical skills needed to be a great lawyer might (or might not) correlate with the other skills needed to thrive.

These observations are not even altogether original. When I was starting out in practice, more than a few lawyers disregarded or even disdained the business aspects of the profession. Now, even those who lament the transformation of their occupation grant that it belongs within the stream of commerce.

Talent is the means to an end. It isn't the end.

By Frank H. Wu, Chancellor & Dean of UC Hastings College of the Law, Twitter: www.twitter.com/frankhwu

Idaho law students push to repeal copyright on state code, put laws in public domain.

Idaho law students Jordan Stott and Randi Schumacher have spent nearly three years poring over the nuances of many laws. Now they're trying to write their own.

An Idaho House panel introduced a bill -- drafted by Stott and Schumacher -- that would remove Idaho's copyright on its state laws and add them to the public domain.

Idaho House panel

The University of Idaho law students argue that if citizens need to follow Idaho's laws, then they should be free to access and reproduce it.

And even though the unofficial text of the statutes is available online, the students say that it's more difficult to access the commentary that accompanies the code.

"You're getting the words of the code, but you're not getting the annotations and notes that are so helpful for understanding," said Stott, who has previously worked with the U.S. Patent and Trademark Office.

Democratic Rep. Ilana Rubel from Boise says she's not sure if the bill will move forward because of pushback from the Idaho Code Commission.

Dan Bowen, who represents the Commission, says the public has ample access to the official code in county law libraries across the state.

People must otherwise buy access to an online version of the code, the students say, or purchase the printed version, which costs more than $500.

"I'm a little concerned about that because we have a big state, and a lot of people can't get to a law library," said Democratic Rep. Ilana Rubel from Boise. "I think it does impair the access somewhat."

After Rubel recognized the concern, she asked the students to research what the policy should be -- and then write the bill itself.

But Rep. Richard Wills, who chairs the House Judiciary, Rules and Administration Committee says he's still uncertain whether he will give the bill a full hearing.

According to the National Conference of State Legislatures, roughly 30 state governments surveyed -- including Idaho-- hold a copyright on their codes.

Idaho has held the copyright on its official law since 1949. The state is currently under contract with Matthew Bender and Company, Inc.

The business is tasked with organizing and maintaining the code, as well as updating its accompanying annotations. Without the financial incentive, Bowen says, there's no reason for Bender to keep updating the notes -- which Bowen says the state doesn't have the capacity to handle.

"I'm sure there was some sort of a reason whenever they originally did this, but I wouldn't know," said Bowen. "That's the way it has been set up, and that's the way it works."

The contract shows that the state pays more than $400,000 per year for 1,025 copies of the full annotated code.

But the students say that the copyright's repeal would allow people to come up with new ways to access the laws.

"It's not enjoyable to read and not easy to search," said Schumacher, who plans to practice law in Boise after her graduation this spring. "If people were able to use the code to make apps or a website, I think that would be good innovation."

Rubel says the students plan to meet with the Code Commission soon in an effort to hammer out a compromise.